Opinion
H042049
07-12-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO JESUS AVILA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS142273A)
A jury convicted Francisco Jesus Avila in February 2015 of misdemeanor exhibiting a deadly weapon and acquitted him of other charges. The charges stemmed from two incidents in 2014 between Avila and P. Santos (Santos), a prostitute whose motel room Avila shared for a short time and with whom he had nonpaying sexual relations. Over defense objections, the trial court permitted the prosecution to introduce prior uncharged acts of domestic violence from 2005, pursuant to Evidence Code section 1109, to show that Avila had a propensity to commit acts of domestic violence in his dating relationships. The court denied Avila's motion to exclude the propensity evidence and limited Avila's cross-examination of the section 1109 witness.
Different names or aliases and gender pronouns appear in the record for Santos. In order to avoid confusion, we use female pronouns, consistent with her stated preference at trial, and refer to her as "Santos."
Unspecified statutory references are to the Evidence Code.
On appeal, Avila contends that the introduction of the propensity evidence and the limits imposed on his defense against the uncharged prior conduct constituted an abuse of discretion and violated his constitutional due process right to a fair trial, to present a meaningful defense, and to confront witnesses against him. We will affirm.
BACKGROUND
A. PROCEDURAL BACKGROUND
1. Charges
The Monterey County District Attorney charged Avila by consolidated information filed on February 3, 2015, with the following counts: felony criminal threats (Pen. Code, § 422, subd. (a); count 1) with use of a deadly weapon (id., § 12022, subd. (b)(1)) on August 3, 2014; felony criminal threats (id., § 422, subd. (a); count 2) on September 1, 2014; felony dissuading a witness by threat on September 1, 2014 (id., § 136.1, subd. (c)(1); count 3); and misdemeanor exhibiting a deadly weapon on August 3, 2014 (id., § 417, subd. (a)(1); count 4). The information further alleged two prior felony convictions (id., § 1170.12, subd. (c)(2)), two prison priors (id., § 667.5, subd. (b)), and commission of the charged offenses while released on bail or his own recognizance (id., § 12022.1, subd. (b)), in relation to the felony counts (counts 1-3).
2. In Limine Proceedings
The trial court addressed a series of evidentiary issues prior to and during trial. These issues in relevant part concerned the prosecution's intent to introduce evidence pursuant to section 1109 of prior acts of domestic violence committed about nine years earlier by Avila against his then-girlfriend, B. Blair (Blair).
Section 1109 provides in part, "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." (§ 1109, subd. (a)(1).) Section 1101 generally prohibits the introduction of character evidence when offered to prove conduct on a particular occasion. (§ 1101, subd. (a).)
The section 1109 evidence concerned an incident in July 2005 in which police responded to a report of a male, Avila, choking a female, Blair. The police arrived to find Blair struggling with her feet sticking out of the driver's side door of the car, while Avila leaned over her from the passenger side. The officer noted what appeared to be finger marks around Blair's neck and bite marks on Avila's arm. Blair indicated that after she and Avila had left a bar and were driving toward home, Avila said that gang members were following her and threatened to kill her if she did not drive to Lake Tahoe so they could get married. When she pulled over, he tried to force her to perform oral sex and choked her when she resisted.
Avila sought to exclude the section 1109 evidence as more prejudicial than probative under section 352, as well as on constitutional grounds. He asserted as a preliminary matter that Santos, the complaining witness in the present case, did not report a relationship with Avila or claim the offenses involved domestic violence, thus requiring a hearing to determine if section 1109 could apply to introduce the uncharged prior acts. The defense also argued that the 2005 incident between Avila and Blair was remote in time, involved substantially different conduct, and was highly inflammatory and unduly prejudicial due to the gang threat, violent physical assault, and sexual nature of the offense. The defense sought information about an arrest of Blair in 2005 that could be used to impeach her testimony and support Avila's defense against the uncharged prior acts.
Following an evidentiary hearing in which Santos testified about her relationship with Avila, the trial court found sufficient evidence of a dating relationship to present the issue to the jury under section 1109. The court agreed in part with the defense that the uncharged conduct involving Blair was prejudicial because it involved sex, but on the other hand noted the similarities between that conduct and the charges in this case, specifically "the issues of violence, control and threat . . . ." The court found the prior conduct was "highly relevant," was not more prejudicial than probative, and because Avila was incarcerated for several years following his plea in the 2005 case, was not remote in time. The court concluded that the evidence of the 2005 incident with Blair was admissible under section 1109 because it showed "the defendant's behavior in controlling, manipulating, [and] threatening in a domestic relationship."
After the trial court's initial rulings on the section 1109 evidence, the prosecution obtained an arrest report showing that in March 2005—four months before the July 2005 incident—Blair was arrested for an alleged battery causing serious bodily injury (Pen. Code, § 243, subd. (d)) to her then-boyfriend, S. Torres. Torres suffered a scratched, bloodied face and a large bite on the wrist. Torres claimed that Blair was " 'psychotic,' " and Blair was taken to the hospital for a Welfare and Institutions Code section 5150 evaluation (hereafter, 5150 evaluaiton). Blair told the police that her relationship with Torres " 'was purely sexual so [she could] get her crank.' " The police released Blair without charges based on a lack of evidence.
The prosecution moved in limine to preclude the defense from questioning Blair about the arrest or incident with Torres. It argued that Blair's conduct likely did not qualify as a crime of moral turpitude and was not admissible for impeachment purposes, and that her arrest never led to charges—so allowing it in evidence would only serve to harass the witness on a collateral matter that did not directly relate to the section 1109 incident involving Avila.
Defense counsel renewed his objections to introduction of the section 1109 evidence based on the information in the arrest report. He argued that pursuant to section 1103, evidence of Blair's allegedly violent conduct toward her boyfriend only a few months before the July 2005 incident involving Avila was admissible to support Avila's defense. Specifically, the circumstances of Blair's arrest would support the defense's theory that like in the earlier incident with Torres, Blair was actually the primary aggressor against Avila and made a false report to the police. According to the defense, even though Blair was not the victim in this case, section 1103 applied because she was "being offered as a prior DV victim" of Avila.
Section 1103 provides in part, "In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is . . . [o]ffered by the defendant to prove conduct of the victim in conformity with the character or trait of character."
The defense also argued that Avila needed to investigate the circumstances of the report and potentially call witnesses, included the victim, Torres, and the reporting officers, which would alter the section 352 analysis on the section 1109 evidence due to the additional witnesses and consumption of time. He urged that Blair's testimony under section 1109 would "create a trial within a trial."
The trial court considered the admissibility of the evidence of Blair's arrest under section 1103 for impeachment purposes and found that even if it were admissible under either theory, it was collateral to the case and "even collateral to [the] 1109 evidence." The court concluded that absent some additional showing of relevance, it would constitute a "gross undue consumption of time" and would be excluded under section 352.
3. Jury Verdict and Sentencing
On February 13, 2015, the jury acquitted Avila of the three felony counts but convicted him of misdemeanor exhibiting a deadly weapon (count 4). The jury found true the allegations of Avila's prior convictions from March 2006. The trial court dismissed the enhancement findings because the jury had acquitted Avila of the felony counts. The court sentenced Avila to time served and discharged him. Avila timely appealed.
We limit our factual summary to the evidence at trial pertaining to the misdemeanor conviction of exhibiting a deadly weapon.
Avila and Santos were living together, in a sexual relationship, for about one month. Santos was a prostitute, but Avila did not pay her for sex. On the morning of the incident on August 3, 2014, Avila and Santos argued. Santos did not have money to pay for the motel room where they were staying; she blamed Avila because he had opposed her prostituting herself the day before. It was the first time he had objected to her line of work. After the argument, in which Avila's tone was louder and more aggressive than usual, Santos left the room and went to the streets to work.
Later that day, Santos was in a fast food restaurant with a friend. Avila came in the restaurant and spoke to Santos as if nothing had happened. She was still upset at him and ignored him. Some minutes later, Santos left the restaurant to work. Avila followed. He was about three to four steps behind her and asked her to stop. She told him that she did not want to talk to him and to leave her alone. He continued to follow her through the parking lot. She told him if he did not leave her alone, she would call the police.
Santos testified that at that point, "he got even angrier and he became aggressive. And he told me that if I called the police he was going to kill me. [¶] And then I ignored him and I turned around and . . . when I wanted to continue walking I saw that he pulled out a knife and he placed it on my neck." Santos explained that the knife was a box cutter, all black, and that he held the knife "[v]ery close" to her neck, "almost dug in." He grabbed her right arm with force and said " 'I've told you to stop walking.' " He said, " 'I want to see you call the police.' " Santos used her strength to pull away. She began walking fast, took out her cell phone, and called 911.
Santos told the 911 operator, in Spanish, that she wanted to report a guy who was "kind of crazy . . . ." She said he had a knife, was following her, and would not leave her alone. She asked the operator to not hang up on her. Santos testified that during the call, Avila tried to grab her again by the arm and tried to take the phone away.
The prosecution played a recording of the 911 call for the jury and provided a transcript that included an English translation.
Officer Robert Miller responded to the report of an assault. When he arrived, Avila appeared to be walking away from Santos. He was about 15 feet in front of her. Officer Miller approached Avila at gunpoint and removed a folding knife from Avila's right front pants pocket. Avila appeared calm and did not seem angry. After securing Avila in handcuffs inside the patrol vehicle, he spoke with Santos. Santos appeared scared and timid. She began tearing up and crying. She said that Avila had "pulled [the knife] out in front of her and pointed it at her and then threatened her." She said they were within arm's reach but never said he touched her with it. According to Officer Miller, Santos provided "all the details that she was willing to provide at the time." She said that she knew Avila from staying at the same motel together for a period of time. He did not ask her additional questions about their relationship. Officer Miller's impression was that Avila was just someone following Santos in an area known for prostitution.
Officer John McNeil arrived immediately after Officer Miller. He observed that Avila and Santos were walking approximately 30 feet apart, with Avila behind Santos and headed in the same direction. Avila told Officer McNeil that he and Santos had argued while walking together. He took the knife out of his pocket and handed it to Santos, handle-first, who threw it. Avila retrieved it and put it back in his pocket where the police found it. Officer McNeil did not speak with Santos or try to confirm Avila's story.
Santos testified that she had four prior convictions—two for prostitution, one for loitering, and one for stealing. She indicated that she had nothing against Avila personally and added, "If I called 911 it's because I really felt like that person was going to kill me."
Over defense objections, Blair testified about an incident in July 2005. Avila was her boyfriend at the time. They dated for about three or four months. They were at a bar in Soquel and Blair wanted to go home. She was driving on highway 17 toward Santa Clara County, but Avila wanted her to go to Lake Tahoe to get married. He was yelling and threatened to have friends who were following shoot her. He then grabbed the steering wheel and turned onto a road where they stopped in front of a home. He wanted her to perform oral sex. He grabbed the back of her hair and forced her head between his legs. His penis was exposed. She refused, and he started strangling her. He choked her for what felt like a long time. Somehow he bit her finger, which developed a severe infection. A family witnessed the struggle and called the police, who intervened.
Officer Kimbell Stanley responded to the call and saw a car in the middle of the street on a small cul-de-sac. He saw "legs hanging out of the car" on the driver's side, and an individual leaning into the passenger side, apparently on top of the upper body of the person in the car. He later identified Blair as the person whose legs were hanging out. Avila was the person leaning in. Officer Stanley ordered Avila away from the car, and he complied. He had a knife tucked in his waistband. He was initially cooperative but became agitated and belligerent after his arrest. He "seemed to be very angry" at the police for arresting him. He had a bite on his arm and wanted Blair to be charged. While in a holding cell, he blurted out, " 'She's fucking through. I'm going to make sure of that.' " Officer Stanley concluded from his observations that Avila was the dominant aggressor, though he could not say definitively that the bite was a defensive wound. The parties stipulated that Avila pleaded guilty to three domestic violence charges related to the July 2005 incident with Blair. The abstract of judgment showing three convictions in relation to the incident was admitted into evidence.
DISCUSSION
Avila challenges, on state law and federal constitutional grounds, the trial court's evidentiary rulings to admit the section 1109 propensity evidence and to limit the scope of Avila's defense to that evidence. We separately address the exclusion of evidence intended to impeach the testimony of the section 1109 witness, Blair, concerning Avila's prior acts against her from the admission of the prior uncharged acts pursuant to section 1109.
A. LEGAL PRINCIPLES
The issues on appeal in this case concern two exceptions to the general rule that "evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion." (§ 1101, subd. (a).) One exception occurs when a criminal defendant is charged with an offense involving domestic violence. Under section 1109, the trial court may permit evidence of the defendant's prior acts of domestic violence to show a propensity to commit such acts, subject to an evaluation under section 352 of whether the evidence is more probative than prejudicial. (§ 1109, subd. (a)(1); People v. Jennings (2000) 81 Cal.App.4th 1301, 1313-1314 (Jennings).) The other exception concerns a criminal defendant's effort to mount a defense based on the character or specific instances of conduct of the victim. Thus, under section 1103, in pertinent part, "evidence of the character or a trait of character . . . of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is . . . [o]ffered by the defendant to prove conduct of the victim in conformity with the character or trait of character."
The introduction of evidence under these exceptions remains subject to the trial court's broad discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) The trial court's weighing of probative value against the potential for undue prejudice, confusion, or consumption of time under section 352 " 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Gutierrez (2009) 45 Cal.4th 789, 828 (Gutierrez); accord People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) We review a trial court's decision to exclude or admit evidence for abuse of discretion. (Gutierrez, supra, at p. 827 [exclusion of victim's prior battery conviction]; Jennings, supra, 81 Cal.App.4th at pp. 1314-1315 [admission of defendant's prior domestic violence].)
Avila claims that the trial court's application of these evidentiary rules violated his constitutional right to present a defense. "A defendant has the general right to offer a defense through the testimony of his or her witnesses (Washington v. Texas (1967) 388 U.S. 14, 19), but a state court's application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon this right." (People v. Cornwell (2005) 37 Cal.4th 50, 82, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also People v. Benavides (2005) 35 Cal.4th 69, 91 ["generally, violations of state evidentiary rules do not rise to the level of federal constitutional error"].) "While the Constitution . . . prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury." (Holmes v. South Carolina (2006) 547 U.S. 319, 326.)
B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION OR VIOLATE AVILA'S CONSTITUTIONAL RIGHTS BY EXCLUDING EVIDENCE TO REBUT THE PROPENSITY EVIDENCE
Avila contends that the trial court abused its discretion and violated his due process rights and protections guaranteed under the Fifth, Sixth, and Fourteenth Amendments by limiting his defense against the allegation of prior acts of domestic violence. He maintains that incongruities in Blair's story at trial and similarities between the July 2005 incident—introduced as propensity evidence pursuant to section 1109—and the circumstances of Blair's arrest in March 2005 made the evidence of that arrest not only relevant, but critical to his defense against the allegation that he had committed prior domestic violence. He argues the trial court should have permitted him to question Blair about her arrest for battery causing serious bodily injury (Pen. Code, § 243, subd. (d)), her statement at the time that she dated the victim, Torres, so she could obtain crank, Torres's claim that Blair was " 'psychotic,' " and evidence that she was taken to the hospital for a 5150 evaluation. Avila contends that the excluded evidence would have supported his theory that Blair was the aggressor in the July 2005 incident with Avila and fostered doubt about the veracity of her story to the police and her testimony at trial.
The trial court questioned whether the evidence was admissible, either as character evidence under section 1103 or for impeachment purposes based on her arrest for a crime of moral turpitude. Without resolving these questions, the court excluded the evidence under section 352 as highly collateral, of minimal relevance, and a gross consumption of time. Blair accordingly testified, as summarized ante, that Avila threatened her that friends would shoot her if she did not follow his directions, grabbed the wheel and turned them off the road, and tried to force her head into his lap multiple times to orally copulate him, then choked her when she refused. The responding officer testified that Avila had a bite on his arm and became angry and profane when he realized that Blair was not being arrested, later shouting out that " '[s]he's fucking through.' " Any evidence related to Blair's arrest several months earlier was excluded. The trial court instructed the jury based on CALCRIM No. 852A that if the People proved by a preponderance of the evidence that Avila committed the uncharged domestic violence against Blair, "you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit" the crimes charged.
We note as a preliminary matter that Avila separately raises his confrontation claims under the Sixth Amendment, citing the fact that defense counsel did not object "precisely" based on the Sixth Amendment to the limits imposed on Blair's cross-examination. While it is true that defense counsel objected to Blair's testimony at trial only "under 352 and the Fifth and 14th Amendment of the US [C]onstitution," the Attorney General acknowledges that earlier in the proceedings, during defense efforts to introduce impeachment evidence based on Blair's earlier arrest, defense counsel specifically objected to its exclusion under section 352 and "on the grounds of the due process clause and the 14th Amendment, 5th Amendment, 6th and 8th Amendment of the US Constitution." We find for purposes of consideration on appeal that this qualified as a specific objection in that it "fairly inform[ed] the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling." (People v. Partida (2005) 37 Cal.4th 428, 435.) Accordingly, we consider Avila's constitutional claims of error including based on his right to confrontation under the Sixth Amendment, together with his claims under state law.
Even if the earlier objection was insufficient to preserve the confrontation clause claim on appeal, Avila argues the issue is not forfeit because the trial court's discretion to exclude evidence or limit cross-examination under section 352 is analogous to the court's " 'wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.' " (People v. Greenberger (1997) 58 Cal.App.4th 298, 350, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 679; see also People v. Harris (1989) 47 Cal.3d 1047, 1090-1091 [recognizing, in context of confrontation clause challenge, the "power of trial courts to restrict cross-examination . . . under well-established principles such as those reflected in Evidence Code section 352"].) We agree under this reasoning that Avila's claim would be reviewable on appeal to the extent the asserted error of excluding evidence of Blair's earlier arrest may have had "the additional legal consequence of violating" his constitutional right to confrontation and cross-examination. (People v. Partida, supra, 37 Cal.4th at p. 435 [applying reasoning to asserted due process violation]; see also People v. Yeoman (2003) 31 Cal.4th 93, 117 ["no useful purpose is served by declining to consider on appeal a claim that merely restates, under alternative legal principles, a claim otherwise identical to one that was properly preserved by a timely motion that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal"].)
Avila relies on due process principles for the proposition that the exclusion of the arrest evidence denied him a " 'meaningful opportunity to present a complete defense.' " (Crane v. Kentucky (1986) 476 U.S. 683, 690 (Crane).) He argues that the inability to cross-examine Blair about the attack on Torres and her arrest deprived him of the "basic right" to test the prosecution's case through the adversarial process. (Ibid.) Viewed in context of the prosecution's introduction of section 1109 propensity evidence, Avila argues that the defendant must be allowed to rebut that evidence with evidence that raises a doubt as to whether it was more likely than not that he committed the prior offense. (See People v. Callahan (1999) 74 Cal.App.4th 356, 378 [defendant is permitted to introduce rebuttal character evidence when the prosecution introduces propensity evidence under parallel provision § 1108].)
Avila criticizes the trial court's ruling to exclude the evidence under section 352 as "a mockery" of these principles because, while the court found the prosecution's section 1109 evidence to be probative, sufficiently recent, and not unduly prejudicial or time consuming, the court found that the defense evidence was not probative, too remote, unduly prejudicial, and would require an undue consumption of time. He suggests that the evidence of Blair's attack on Torres resembled the July 2005 incident because both involved circumstances suggesting the use of drugs, occurred in a car with the man sustaining a bite, and did not clearly reveal who was the initial aggressor. Avila argues that this evidence implicated Blair as the primary aggressor and made it more likely that Avila was not guilty of the 2005 crimes.
Avila further argues that despite the trial court's "wide latitude to impose reasonable limits on cross-examination" (People v. Greenberger, supra, 58 Cal.App.4th at p. 361), the ruling to exclude inquiry into Blair's earlier arrest prevented him from impeaching the credibility of a prosecution witness. The Sixth Amendment right of confrontation safeguards " 'the opportunity of cross-examination' " as a mechanism to impeach or discredit the witnesses against the accused, including by introducing evidence of a prior crime. (Davis v. Alaska (1974) 415 U.S. 308, 315-316 (Davis).) The Supreme Court in Davis found the application of a state evidentiary rule violated the defendant's "right of effective cross-examination" because the defense was unable to make a record from which to argue that a key prosecution witness might have been biased or subject to "undue pressure" due to his "vulnerable status as a probationer." (Id. at p. 318.) Avila asserts that like the testimony of the prosecution witness in Davis, supra, 415 U.S. at page 317, Blair's testimony provided a " 'crucial link in the proof' " of the prosecution's case, allowing the jury to infer that he had a tendency to commit domestic violence.
Assuming for present purposes that the excluded evidence was admissible, we are not persuaded that it provided a "crucial link" in Avila's case or was "critical" to prevent the jury from inferring that he had a propensity to commit the charged crimes (see Crane, supra, 476 U.S. at p. 691 [excluded evidence "was all but indispensable to any chance of" the defense succeeding], Chambers v. Mississippi (1973) 410 U.S. 284, 302 [excluded testimony was "critical" to the defense]), nor that the trial court abused its discretion in excluding the evidence as highly collateral, prejudicial, and time consuming.
The defense sought to introduce the evidence of Blair's arrest as impeachment evidence and as victim character evidence pursuant to section 1103. The trial court noted that both approaches raised admissibility questions. Section 1103, subdivision (a), permits the introduction of "evidence of the character . . . of the victim of the crime for which the defendant is being prosecuted . . . ." (Italics added.) The court asked "whether 1103 would even apply to the impeachment of an 1109 witness" rather than the victim in this case. The court also questioned whether Blair's alleged conduct against Torres would qualify as a crime involving moral turpitude for impeachment purposes. (See, e.g., People v. Mansfield (1988) 200 Cal.App.3d 82, 89 [battery resulting in serious bodily injury "is not a crime necessarily involving moral turpitude" and the trial court "erred in admitting its use for impeachment"]; People v. Thomas (1988) 206 Cal.App.3d 689, 694 [offenses of simple battery and felony battery do not involve moral turpitude]; cf. People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1401 [infliction of corporal injury on a spouse or cohabitant involves moral turpitude].)
The trial court made no findings on these issues and did not rule on the admissibility of the evidence under either theory, but excluded the evidence solely under section 352.
Most notably, Blair was not a witness on the charged offenses. Her testimony—and any impeachment thereof—was relevant only to the issue of Avila's propensity to commit domestic violence. We do not minimize the probative value of propensity evidence. Indeed, such evidence " ' "is [deemed] objectionable, not because it has no appreciable probative value, but because it has too much.". . .' " (People v. Falsetta (1999) 21 Cal.4th 903, 915 (Falsetta); see also People v. Johnson (2010) 185 Cal.App.4th 520, 532 (Johnson) [§ 1109 "reflects the legislative judgment that in domestic violence cases, as in sex crimes, similar prior offenses are 'uniquely probative' of guilt in a later accusation"].) But the trial court's finding that the evidence to impeach Blair was highly collateral was supported by the fact that discrediting her testimony, at most, might have foreclosed the jury from inferring an inclination or disposition of the defendant to commit the charged crimes. (§ 1109; CALCRIM No. 852A.) The jury was properly instructed that the prosecution had to prove each charge beyond a reasonable doubt, and its conclusion about Avila's culpability for the prior acts was "not sufficient by itself to prove" guilt as to the charged offenses.
What is more, the fact that Blair was not charged for the alleged battery due to lack of evidence rendered its probative value uncertain. The "trial within a trial" that defense counsel argued was necessary to defend against the section 1109 evidence would have required multiple witnesses and substantial consumption of time—all to establish the facts of a separate incident unrelated to the defendant, for which charges were never brought, and which included potentially embarrassing and prejudicial topics including the witness's mental stability and drug use at the time. Given these facts, the trial court's concerns about prejudice to the witness and undue consumption of time on a collateral matter were well-founded. We conclude that the trial court did not exercise its discretion " 'in an arbitrary, capricious or patently absurd manner' " (Gutierrez, supra, 45 Cal.4th at p. 828) in weighing the probative value of the excluded evidence against the risk of undue prejudice and consumption of time.
The collateral nature of the proffered impeachment evidence also undercuts Avila's constitutional claims. The Supreme Court's jurisprudence on this issue describes a range of evidentiary rulings in which the exclusion of critical defense evidence crossed the threshold of a fair trial and right to present a meaningful defense. Error of such constitutional dimension appears in Chambers v. Mississippi, supra, 410 U.S. at pages 294 through 298 (defendant precluded from cross-examining third-party who previously confessed to the murder, and from calling witnesses of the third-party's statements naming himself as the murderer), Davis, supra, 415 U.S. at pages 310 through 318 (defendant unable to cross-examine "crucial" prosecution witness about his juvenile probation status and potential bias in identifying the defendant in order to shift suspicion away from himself), Crane, supra, 476 U.S. at pages 690 through 691 (defendant unable to introduce testimony about the circumstances in which police secured his murder confession in case lacking any physical evidence linking him to the crime), and Holmes v. South Carolina, supra, 547 U.S. at pages 328 through 331 (defendant precluded from introducing proof of third-party guilt—regardless of its probative value—due to prosecution's supposedly " 'strong' " forensic evidence).
In contrast with these examples, Avila had ample opportunity to cross-examine and impeach Santos—the key witness on the charges against him—on issues including her statements to the police and her seemingly inconsistent behavior toward him, her prior convictions, and her use of different names and aliases. Further, nothing precluded Avila from attempting to impeach Blair based on her direct testimony about the July 2005 incident, particularly about elements of her story from that day that he claims "made no sense" or were not corroborated by Officer Stanley's testimony. The evidence about Blair's arrest a few months earlier was arguably relevant for impeachment purposes in relation to the propensity evidence; but given its limited probative value and highly collateral relationship to the evidence in the case, we cannot agree that its exclusion hampered his defense or interfered with his constitutional right to a fair trial, confrontation, and cross-examination.
C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION OR VIOLATE AVILA'S CONSTITUTIONAL RIGHTS BY ADMITTING PROPENSITY EVIDENCE
Avila contends that the trial court committed prejudicial error by failing to exclude the section 1109 propensity evidence after the discovery of Blair's arrest. He argues that evidence of her arrest a few months before the incident between Blair and Avila required a "substantial mini-trial of the uncharged conduct, which promised to be nearly as extensive as the trial of the charged conduct," and considerably altered the analysis for admitting the section 1109 evidence under section 352. According to Avila, the failure to exclude the section 1109 evidence despite the factors introduced by Blair's arrest constituted an abuse of the trial court's discretion and violated his rights under the Fourteenth Amendment to due process and a fair trial.
The details of Blair's arrest emerged as trial was underway. Defense counsel renewed Avila's objections to the introduction of propensity evidence based on the July 2005 incident between Blair and Avila, arguing that the issue needed to be reanalyzed because there were "potentially three new witnesses" who needed to be called, requiring a "trial within a trial." Defense counsel also objected based on the timing of the arrest revelation and his inability to pursue a defense "right in the middle of trial . . . ." Defense counsel later argued that the acts described by Santos during her testimony were less violent and of a different character than the section 1109 evidence that the prosecution sought to introduce. Specifically, the July 2005 incident involved "graphic sexual violence" and "a physical fight," as well as physical injuries. In contrast, although Santos testified that Avila grabbed her arm and put the knife to her throat, that account was inconsistent with her report to the police and the physical evidence. The trial court acknowledged "some change in the information" before it but found nothing contrary to its earlier ruling. Rather, the court found based on Santos's testimony that "defendant was exercising control in the relationship" and reaffirmed its prior ruling under section 1109 and section 352.
Avila contends that the section 1109 evidence was more inflammatory than the evidence of the charged offenses. He points to Blair's testimony that Avila forced her to turn off the freeway and pushed her head multiple times into his lap, with his penis exposed, while demanding oral sex. Further, Blair testified that Avila strangled her when she refused. He argues in contrast that the charged offenses did not involve sexual or physical violence. Although Santos testified that Avila grabbed her arm and put the knife to her neck, she quickly freed herself, admitted that she was six inches taller and outweighed Avila by 65 pounds, bore no marks from the alleged conduct, and when police arrived minutes later, Avila was 15 to 30 feet away from Santos, appeared calm, and was cooperative. He asserts that while the trial court acknowledged that the section 1109 evidence was "prejudicial" in that it "involve[d] sex," the court failed to assess the emotional response that Blair's testimony was likely to evoke and its impact on Avila's ability to receive a fair trial. In addition, Avila asserts that the passage of more than nine years between the prior incident and the charged conduct weighed against its admission. He further asserts that to defend against the alleged prior conduct would have required additional witnesses to testify about Blair's alleged attack on Torres a few months earlier and her subsequent arrest and psychiatric evaluation.
We are not persuaded that admission of the section 1109 evidence was unduly prejudicial or that a "fair trial" on it would have consumed more time and confused the issues for the jury. Section 1109 authorizes admission of a criminal defendant's prior domestic violence acts to show a propensity to commit such acts, subject to an evaluation under section 352 of whether the evidence is more probative than prejudicial. (§ 1109, subd. (a)(1); Jennings, supra, 81 Cal.App.4th at pp. 1313-1314.) " ' "The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense." ' " (Johnson, supra, 185 Cal.App.4th at p. 531.) This depends on the character of the prior incident as compared to that of the charged domestic violence crime. (See id. at p. 532.) While the conduct charged in this case was not particularly graphic or sexual, we find the trial court's determination that both the charged and uncharged conduct exhibited controlling and violent behavior in an intimate or sexual relationship was well-supported. The evidence showed that Avila and Santos—like Avila and Blair nine years earlier—were in a short-term, sexual and domestic relationship. Both women testified to Avila's attempt to direct or control their behavior, and resulting verbal threats and physical menacing that occurred when they resisted. In the July 2005 incident, Avila responded to Blair's refusal to comply by strangling her, whereas in this case Avila responded to Santos's refusal to stop walking and threat to call the police by brandishing the box cutter and either pointing it at Santos or placing it against her throat. Based on similar controlling and physically violent features of these two incidents, we conclude that the trial court properly found the evidence relevant and probative under section 1109. The revelation of Blair's arrest a few months before the July 2005 incident did not alter the probative value of the section 1109 evidence.
We further find no abuse of discretion in the trial court's weighing under section 352 of potential prejudice to Avila. "Evidence is not inadmissible under section 352 unless the probative value is ' "substantially" outweighed by the probability of a "substantial danger" of undue prejudice.' " (People v. Fruits (2016) 247 Cal.App.4th 188, 205.) Factors relevant to the prejudice analysis include "(1) the inflammatory nature of the uncharged conduct[,] (2) the possibility of confusion of issues[,] (3) remoteness in time of the uncharged offenses[,] and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses." (People v. Branch (2001) 91 Cal.App.4th 274, 282, citing People v. Harris (1998) 60 Cal.App.4th 727, 737-741.) A trial court's exercise of discretion under section 352 " 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (Gutierrez, supra, 45 Cal.4th at p. 828.)
Certainly, the sexual and physical violence in the July 2005 incident was disturbing and potentially inflammatory. The trial court in fact described the sexual aspect of the past misconduct as "prejudicial," but noted the conduct was not "solely limited to sex." Rather, it identified the use of "violence, control and threat" as the common characteristic of both the prior conduct and the charged conduct. Considering the threats and violence that comprised the charged conduct in this case, which according to Santos's testimony involved Avila following her, threatening and grabbing her, and pressing the box cutter to her throat, we do not fault the trial court's reasoning regarding the inflammatory or prejudicial nature of the prior conduct. (See Johnson, supra, 185 Cal.App.4th at p. 533 ["common factors" in all three domestic violence crimes suggested the defendant had "a problem with anger management" when he felt rejected or challenged by his female intimate partners].) The same is true for the nine years between the charged and uncharged conduct, which the trial court properly observed fell within the 10-year statutory timeframe (see § 1109, subd. (e)), and which length of time was mitigated by the fact that Avila was in custody for a "substantial" part of it.
We further note that the prejudicial impact of the admitted propensity evidence "is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses . . . ." (Falsetta, supra, 21 Cal.4th at p. 917; see also Jennings, supra, 81 Cal.App.4th at p. 1315 [knowledge that the defendant pleaded no contest and was punished "substantially mitigates the kind of prejudice usually associated with the introduction of prior bad act evidence"].) The jury in this case was informed by the parties' stipulation that Avila pleaded guilty to three domestic violence charges based on the July 2005 incident and had in evidence the redacted record of his convictions. The jury thus had enough information about Avila's prior convictions to allay any inclination to punish him for the disturbing conduct that comprised the past offense.
Finally, we are not persuaded that a fair hearing on whether Avila committed the uncharged prior acts would have consumed an inordinate amount of time and confused the jury. In support of this argument, Avila relies on his proposed defense of discrediting Blair's testimony with the evidence of her arrest a few months before the July 2005 incident for battering her then-boyfriend, Torres. Avila complains that the timing of the disclosure about Blair's arrest made it impossible for the defense to investigate those facts and to contact the relevant witnesses—who would have outnumbered the prosecution's section 1109 witnesses—before the end of trial. These arguments ignore the simple fact that Blair's arrest was separate from and unrelated to the July 2005 incident, and the proposed witnesses had no percipient knowledge of that incident or the facts leading to Avila's plea and convictions. As we explained ante in our analysis of the trial court's order to exclude this body of evidence, Blair's arrest and release without charges a few months before the incident with Avila was highly collateral and of limited probative value to the defense. The trial court did not abuse its discretion, after the discovery of Blair's arrest, in reaffirming its determination that the uncharged prior conduct from July 2005 was probative and admissible under section 1109 and was not unduly prejudicial under section 352.
Notably, the exclusion of evidence under section 352 is not designed to avoid " 'the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. "[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case." ' " (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) Rather, the "prejudice" referred to in section 352 " 'applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " (People v. Poplar, supra, at p. 1138.) Here, the jury acquitted Avila of the three felony counts, including that of criminal threats, suggesting that it was not swayed by inflammatory evidence or emotional bias, confused by the introduction of the uncharged acts, or tempted to punish Avila for his prior conduct. Apart from the introduction of the section 1109 evidence, there was ample evidence to support the misdemeanor exhibiting a deadly weapon conviction. This evidence consisted in part of Santos's description of the box cutter knife on the 911 call, its presence on Avila's person when the police arrived, and Avila's statement to Officer McNeil that he had taken it out and "handed it to" Santos while they were arguing.
The crime of brandishing may be committed by drawing or exhibiting, in the presence of another person, any deadly weapon other than a firearm, in a rude, angry or threatening manner. (Pen. Code, § 417, subd. (a); see People v. Booker (2011) 51 Cal.4th 141, 189 [evidence that the defendant "participated in the argument giving rise to the fight and . . . drew his knife in the context of the confrontation" was sufficient for the introduction of prior violent conduct based on brandishing].) --------
Given the strength of the evidence on the single misdemeanor count and the jury verdict otherwise acquitting Avila of the other counts, we find that even if the trial court's admission of the section 1109 evidence was an abuse of discretion, it would not warrant reversal. There is no basis from which to infer it is reasonably probable that a more favorable result would have occurred had the section 1109 evidence been excluded or the evidence of Blair's earlier arrest been admitted. (People v. Rodrigues, supra, 8 Cal.4th at p. 1125 [standard for reversal based on abuse of discretion].) Furthermore, Avila fails to show that the trial court's proper application of section 1109, including the weighing of prejudice under section 352, violated his due process or fair trial rights.
DISPOSITION
The judgment is affirmed.
/s/_________
Premo, Acting P.J.
WE CONCUR: /s/_________
Elia, J. /s/_________
Bamattre-Manoukian, J.